Cromwell and Cromwell (Child support)

[2024] AATA 3578

Cromwell and Cromwell (Child support) [2024] AATA 3578 (1 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC027979

APPLICANT:  Mr Cromwell

OTHER PARTIES:  Child Support Registrar

Ms Cromwell

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  01 August 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – percentage of care – change in care – flexible arrangement based on the wishes of the children – existing percentage of care determinations revoked – new determinations made – date of application – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This review is about a change to the percentage of care determinations for Mr Cromwell and Ms Cromwell in respect of their children [Child 1] (born March 2007) and [Child 2] (born May 2008).  There has been a child support assessment in place since 27 May 2011.

2. From 22 January 2014 the child support assessment reflected Mr Cromwell as having 20 per cent care and Ms Cromwell as having 80 per cent care of [Child 1] and [Child 2].

3. On 7 March 2024 Ms Cromwell notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that she provides 100 per cent care and Mr Cromwell provides 0 per cent care of [Child 1] and [Child 2] from 6 March 2020.

4. On 7 March 2024 Child Support made the decision to reflect that Mr Cromwell provides 0 per cent care of [Child 1] and [Child 2] and Ms Cromwell provides 100 per cent care from 6 March 2020, notified on 7 March 2024.

5. On 12 March 2024 Mr Cromwell objected to this decision and on 18 May 2024 Child Support disallowed the objection (the objection decision).

6. On 21 May 2024 Mr Cromwell applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 1 August 2024.  Mr Cromwell and Ms Cromwell gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (260 pages).  The Tribunal also received additional evidence from Mr Cromwell prior to the hearing (A1–A5).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. Child Support makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has had, or is likely to have, during a care period (section 50 of the Act).  The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] and [Child 2] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations apply?

CONSIDERATION

1. Mr Cromwell told the Tribunal the parents had a flexible arrangement in relation to the care of [Child 1] and [Child 2], which was largely based on the wishes of the children.  Mr Cromwell said there was no written agreement and the children usually spent weekends with him.  Mr Cromwell added this weekend care was left up to the children to decide.

2. Mr Cromwell explained that from 6 March 2020, as a result of the COVID-19 pandemic, [Child 1] and [Child 2] stopped staying overnight with him and his care had not resumed since.  Mr Cromwell pointed out that he had tried on numerous occasions to arrange a resumption of his care but Ms Cromwell had told him the children would not agree.  Mr Cromwell said given the arrangement between the parents that it would be up to the children to decide when they spent time with him, he did not wish to push the matter further.  Mr Cromwell said he continued to seek a recommencement of his care but to no avail.

3. Mr Cromwell said he could not understand why Ms Cromwell had notified Child Support of the change in their care arrangements on 7 March 2024 given the passage of time.  Mr Cromwell said he simply wanted to see [Child 1] and [Child 2].

4. Ms Cromwell said she agreed there was a flexible care arrangement in place between the parents which allowed the children to make their own plans about where they stayed.  Ms Cromwell said care changed from 6 March 2020 initially due to restrictions associated with the COVID-19 pandemic but she had never stopped the children from seeing their father.

5. Ms Cromwell pointed out that she had only advised Child Support about the change of care when she was discussing a matter with a child support officer relating to Mr Cromwell relocating.  Ms Cromwell reiterated the care arrangement between the parents ended on 6 March 2020 and had not resumed.  Ms Cromwell said this was a choice [Child 1] and [Child 2] had made.

6. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child changed. 

7. It is not in contention and the Tribunal finds that care of [Child 1] and [Child 2] changed from 6 March 2020.  The Tribunal is satisfied that Mr Cromwell provides 0 per cent care and Ms Cromwell provides 100 per cent care of [Child 1] and [Child 2] from 6 March 2020.

8. Mr Cromwell argues that since the pattern of care changed he has continued to seek care of the children in keeping with the arrangement between the parents, however, the Tribunal must nonetheless reflect the actual care that is taking place during the relevant care period.

9. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] were 20 per cent care to Mr Cromwell and 80 per cent care to Ms Cromwell.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

10. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that is taking place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Cromwell and Ms Cromwell under sections 49 and 50 of the Act.

2. The Tribunal finds that Mr Cromwell provides 0 per cent care and Ms Cromwell provides 100 per cent care of [Child 1] and [Child 2].

Date of application of new care percentage determinations

1. The Tribunal finds that Ms Cromwell first notified Child Support of the change in care for [Child 1] and [Child 2] on 7 March 2024.  As this is more than 28 days after the change occurred on 6 March 2020, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 6 March 2020 for Mr Cromwell and from 7 March 2024 for Ms Cromwell.

DECISION

The decision under review is affirmed.